Supreme Court New South Wales Medium Neutral Citation: Railcorp NSW v Registrar of the WCC of NSW [2013] NSWSC 231 Hearing dates: 10/12/2012 Decision date: 26 March 2013 Before: Harrison AsJ Decision: The Court orders that: (1) The plaintiff's claim for judicial review fails. (2) The summons filed 13 April 2012 is dismissed. (3) The plaintiff is to pay the second defendant's costs as agreed or assessed. Catchwords: ADMINISTRATIVE LAW - judicial review - whether Registrar acted outside statutory powers - whether issue estoppel Legislation Cited: Compensation Court Act 1984 Interpretation Act 1987 Supreme Court Act 1970 Workers Compensation Act 1987 Workers Compensation Legislation Amendment Act 2012 Workplace Injury Management and Workers Compensation Act 1998 Cases Cited: Abou-Haidar v Consolidated Wire Pty Ltd [2010] NSWWCCPD 13 Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190; (2010) 78 NSWLR 393 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 Prisk v Department of Ageing, Disability and Home Care (No 2) [2009] NSWWCCPD 12 Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141; (2006) 5 DDCR 482 Superior Formwork Pty Ltd v Livaja [2009] NSWWCCPD 158 Switzerland Insurance Workers' Compensation (NSW) Ltd v Burley (NSWCA, 5 December 1996, unreported) Category: Principal judgment Parties: Railcorp NSW (Plaintiff) Registrar of the Workers Compensation Commission of New South Wales (First Defendant) Ragaa Haroun (Second Defendant) Representation: Counsel: JW Dodd (Plaintiff) SW Gibb SC with SG Moffet (Second Defendant) Solicitors: Sparke Helmore (Plaintiff) Crown Solicitor, Submitting Appearance (First Defendant) Walker Legal (Second Defendant) File Number(s): 2012/116747 Judgment 1HER HONOUR: Mrs Haroun was employed by Railcorp NSW and was injured during the course of her employment. This application for judicial review raises two main issues. They are firstly, whether the Registrar by his delegate acted outside his statutory powers; and secondly, whether there was an issue estoppel. 2By summons filed 13 April 2012, the plaintiff seeks, firstly, that the determination by the first defendant dated 7 November 2011 be quashed or set aside; secondly, that the decision of the first defendant dated 29 September 2011 confirmed in the notice advising the date of examination dated 6 October 2011 be reinstated; thirdly, that as a result of the relief claimed in Order 1, the Medical Assessment Certificate of Dr Philippa Harvey-Sutton be quashed; fourthly, that, if Orders 1 and 2 are not made, that the decision of the first defendant dated 9 March 2012 be set aside; and fifthly, that the proceedings in the Workers Compensation Commission of New South Wales be remitted to a Medical Appeal Panel. 3The plaintiff is Railcorp NSW ("Railcorp"). The first defendant is the Registrar of the Workers Compensation Commission of New South Wales ("the Registrar"), who has filed a submitting appearance. The second defendant is Ragaa Haroun (Mrs Haroun). 4Railcorp seeks a decision that the Registrar's decision to appoint Dr Schutz as the Approved Medical Specialist of 29 September 2011 advising the date of examination dated 6 October 2011 be reinstated. If Railcorp is unsuccessful in obtaining such an order, Railcorp also claims that the decision of the Registrar dated 9 March 2012 in refusing to allow Railcorp's appeal to a Medical Appeal Panel was improperly made and seeks an order that the proceedings in the Workers Compensation Commission of New South Wales be remitted to a Medical Appeal Panel. Background 5On 24 June 2005 and 14 July 2005, Mrs Haroun suffered injuries in the course of her employment with Railcorp. Railcorp has paid weekly compensation and medical expenses in respect of both injuries. 6Mrs Haroun has made three claims for lump sum compensation arising out of the said injuries based upon the same (or lower) assessments of whole person impairment ("WPI"). 7There have been four medical assessments relied upon by Mrs Haroun. They are all by Dr Conrad, namely 11 May 2006: assessing 12% WPI regarding the injury of 24 June 2005 and 4% WPI regarding the injury of 14 July 2005; 28 October 2008: assessing WPI of 8% and 4% respectively; 29 September 2009: assessing WPI of 8% and 4% respectively; and 11 March 2011: assessing WPI of 12% and 4% respectively. 8The first claim made by Mrs Haroun was referred for assessment to Dr Schutz, an Approved Medical Specialist, who provided an assessment of WPI on 22 November 2006. Dr Schutz's assessment was 1% WPI for the 24 June 2005 injury and 1% WPI for the 14 July 2005 injury. On 22 May 2007, Mrs Haroun appealed this assessment to the Medical Appeal Panel, who confirmed the assessments by Dr Schutz. 9Mrs Haroun brought prior proceedings in the Supreme Court seeking judicial review of the Medical Appeal Panel decision, that summons was dismissed by me. An appeal from my decision to the Court of Appeal was unsuccessful. 10On 29 June 2007, the Workers Compensation Commission determined Mrs Haroun's lump sum entitlements in accordance with the Approved Medical Specialist and Medical Appeal Panel assessments and made orders accordingly. Railcorp has paid the compensation so ordered. 11Mrs Haroun's second claim was brought in 2009. On 13 July 2009 by consent, the proceedings were discontinued with no order as to costs. 12On 12 September 2011, Mrs Haroun brought a third claim and on 29 September 2011, the Registrar referred Mrs Haroun's third claim for assessment to Approved Medical Specialist Dr Schutz for assessment. On 7 November 2011, the Registrar determined that Mrs Haroun should be examined by a different Approved Medical Specialist, Dr Harvey-Sutton. 13Dr Harvey-Sutton provided a Medical Assessment Certificate ("MAC") dated 26 March 2012. Railcorp applied to appeal to a Medical Appeal Panel against that assessment, on the bases that Dr Harvey-Sutton was incorrectly appointed by the Registrar and that she had failed to take into account the previous assessment by Dr Schutz and the determination by the Workers Compensation Commission dated 29 June 2007. 14On 9 March 2012, Railcorp's application for an appeal was rejected. Railcorp now seeks judicial review of the Registrar's decisions on 7 November 2011 and 9 March 2012. The Registrar's decisions on 30 September 2011 and 7 November 2011 - was either one a reconsideration? 15Whether or not the determination made on 7 November 2011 was made ultra vires and should be set aside depends upon whether the determination was a reconsideration or a further determination under the Workplace Injury Management and Workers Compensation Act 1998. 16On 7 September 2011, Mrs Haroun lodged an application to resolve a dispute. Under Part 5 - Claim details, it was indicated by her that the parties requested the Registrar to appoint an Approved Medical Specialist. There is no agreement between the parties as to the particular Approved Medical Specialist who should conduct the medical assessment. 17It is now necessary to briefly refer to the correspondence between the parties from 29 September 2011 to 9 November 2011 to ascertain what transpired and how the change from Dr Schutz to Dr Harvey-Sutton came about. Before doing so, I should mention that a number of "determinations" were given by different delegates. It is common ground that the Registrar may delegate her powers - see s 371(2) of the Act. 18On 29 September 2011, at 1.50 pm the team leader, Wayne Wormald (a delegate of the Registrar) emailed the parties stating that any objection to the referral as framed should be lodged and served within seven days. 19On 29 September 2011, at 12.48 pm prior to the email from Mr Wormald, Mrs Haroun's solicitors faxed a letter to the Registrar. It stated: "We are instructed to oppose the submissions by the Respondent to have the matter referred to Dr Schutz AMS. The Applicant submits that the worker is entitled to attend an Approved Medical Specialist appointed by the Registrar in the absence of an agreement between the parties and is not bound to return to the same AMS who assessed her previously." 20On 29 September 2011, at 2.01 pm, Mrs Haroun's solicitor emailed Mr Wormald as follows: "We reiterate the Applicant object(s) to have the matter referred to Dr Schutz as submitted by the Respondent and in the absence of agreement between the parties in relation to the AMS, would request the Commission to randomly allocate an AMS to examine our client." 21On 29 September 2011, 2.24 pm, Railcorp's solicitor wrote to Mr Wormald stating: "The respondent submits that the referral to Dr Schutz as the claim is in respect of deterioration subsequent to the previous MAC and on that basis Dr Schutz is in the best position assess the claim. If the applicant objects to the referral to Dr Schutz the applicant should provide reasons as to why the applicant objects to the referral." 22At 3.32 pm, Mr Wormald wrote to the parties stating: "The practice of the Registrar is where a claim for deterioration resulting in permanent impairment is made, to refer the matter back to the same Approved Medical Specialist as the previously appointed AMS has considered the matter, to ensure consistency and fairness in the proceedings. Whilst I note that Dr Schutz's assessment was previously subject to an appeal, the decision of Dr Schutz as to permanent impairment was confirmed by the Appeal Panel. Noting this, the absence of any submissions made as to why Dr Schutz is unable to make an assessment in the matter, and that the parties have not made an agreement as to the appointment of an AMS in accordance with the legislation, the Registrar is required to appoint the AMS in this matter - and the Registrar appoints Dr Schutz in accordance with the standard practice to which I referred." 23Hence, on 29 September 2011, the Registrar by her delegate, made a decision to appoint Dr Schutz as the Approved Medical Specialist ("the decision"). 24As at 29 September 2011, Mrs Haroun's solicitors were requested to lodge an objection (which they did). Then Railcorp's solicitor requested that Mrs Haroun provide reasons for her objection. No reasons were sought by the decision maker as requested by Railcorp. Instead the delegate proceeded to make a decision, without seeking this information, to refer the claim to Dr Schutz. 25On 30 September 2011 at 10.24 am (the day after the determination had already been made) Mrs Haroun's solicitors provided reasons as to why she objected to Dr Schutz being appointed as the Approved Medical Specialist. According to Mrs Haroun's solicitor the conduct of Dr Schutz during the previous assessment was unprofessional for the following reasons: "1) He was dismissive towards our client's report of her injuries; 2) During physical examination our client was forced to perform movements and positions which she was unable to due to her injuries, and when this was raised with Dr Schutz these complaints were dismissed casually; 3) The doctor was eating throughout the examination of our client; 4) The doctor did not at any time ask to examine the actual scans our client brought with her to the examination; 5) The doctor repeatedly checked our client's handbag for contents. ... The Applicant does not wish to direct the Registrar to appoint a specific AMS as it is certainly open to the Registrar to select an AMS from the panel. However, the Applicant submits that based on the abovementioned reasons the Registrar should reconsider referring the matter to be re-examined by Dr Schutz. The Applicant is confident that the qualified AMS on the panel will be able to be adequately guided by the AMA5 Guidelines in assessing the extent of our client's impairment." (my emphasis added) 26In fairness to Dr Schutz, it is important to emphasise that while these allegations are serious they are allegations that have not been substantiated. 27On 30 September 2011, 12.09 pm, the delegate, Mr Wormald responded: "The issues you raise effectively amount to a complaint regarding the conduct of the Approved Medical Specialist. Would you clarify whether this is the first time these issues have been raised, or whether they have been raised previously, noting the examination took place almost 5 years ago? I am unable to locate in the material on the file, including the previous appeal determination, anything to indicate that these issues were previously raised. Further consideration to your request will be given upon your response." 28At 1.59 pm, Mrs Haroun's solicitor replied: "Our client is complaining about a doctor she saw. She had a bad experience and does not see why she should have to see him again. The Act does not require that she do so. Do you require sworn evidence from our client regarding these complaints? Should this be necessary we will obtain this from our client. ... We again request that you please reconsider having the matter referred to Dr Schutz." (my emphasis added) 29Hence, on 30 September 2011, Mrs Haroun made her initial request for a reconsideration. 30On 30 September 2011, at 2.51 pm, Mr Wormald responded: "Please bear in mind that a statutory determination has been made by the Registrar (through her delegate) pursuant to section 321 (2) of the legislation to appoint Dr Schutz as Approved Medical Specialist to determine the Medical Dispute in this matter. As indicated, for the purposes of consistency and fairness, the Registrar adopts this practice. Once the appointment of an AMS has been made - it is not open to the Registrar to simply change an AMS on the basis of an application by one party, in the absence of an appropriate legal basis to do so. On the information provided, there is no legal basis upon which the decision to appoint Dr Schutz as AMS, should be altered. Please note that the WorkCover Guidelines make it clear that your client is entitled to be accompanied to the examination with Dr Schutz by a support person, and noting your client's concerns, that is a course of action she may wish to consider. Alternatively, if you are able to reach an agreement with the Respondent regarding the appointment of an agreed alternative Approved Medical Specialist - please advise within 7 days and the Registrar will appoint that AMS." 31On 30 September 2011, in response to the initial request for a reconsideration, the delegate confirmed the decision to appoint Dr Schutz as the Approved Medical Specialist. 32On 6 October 2011, the parties were advised that Mrs Haroun was to be medically assessed by Dr Edward Schutz on 3 November 2011 at 3.30 pm. 33On 1 November 2011 (two days before the scheduled examination was to take place) Mrs Haroun's solicitor provided a more fulsome explanation of her allegations concerning Dr Schutz's unprofessional conduct to the Registrar. Mrs Haroun's solicitor's letter concluded by saying: "... Accordingly, we request that the registrar kindly consider the above issues which have been raised by our client and consider making an alteration to the Medical Specialist by whom our client is to be examined for the purposes of determining her degree of impairment. We note that the appointment with Dr Schutz is on 3 November 2011. Accordingly, can you please make an urgent determination on this matter? We look forward to receiving your early reply." (my emphasis added) 34This was a request for an urgent determination. 35On 2 November 2011 at 2.35 pm, Mr Patrick Allen Acting Team Leader Dispute Services (also a delegate of the Registrar) replied: "No further correspondence was received until 1 November 2011, when particulars of your client's complaints against Dr Schutz were provided to the Commission for the first time. While the Registrar does have the ability to investigate complaints against Approved Medical Specialists, given it has been 5 years since the initial examination, the passage of time arguably makes any investigation impractical at this point. Given that the appointment is scheduled for tomorrow, please inform your client that they should attend." 36In response to the request for an urgent determination, the delegate advised the plaintiff that she had to attend the medical appointment with Dr Schutz. 37The solicitor for Mrs Haroun did not give up. On 2 November 2011, at 2.44 pm the solicitor emailed Mr Allen in the following terms: "My client instructs me to convey that she will not attend the examination with Dr Schutz. Given the circumstances as conveyed in some detail already I would have thought the commission could quite easily of its own accord show some degree of flexibility in selecting an alternate doctor. I urgently seek your reconsideration and some degree of compassion." 38On 2 November 2011, the plaintiff made her second request for a reconsideration. 39On 2 November 2011 at 3.47 pm, Mr Allen emailed the parties as follows: "In light of Mr Walker's advice that his client will not attend the examination tomorrow, the Commission has cancelled the appointment with Dr Schutz to avoid any unnecessary inconvenience to the Approved Medical Specialist. As a means of progressing this matter in a timely fashion, the Registrar proposes appointing Dr Phillip Harvey-Sutton to examine the Applicant. Dr Harvey-Sutton has previously examined the Applicant for the purposes of a General Medical Dispute. Dr Harvey-Sutton is able to offer an appointment on 14 December 2011 at 2pm." 40The delegate now proposed to cancel the appointment with Dr Schutz and reschedule it with Dr Harvey-Sutton. 41Not surprisingly, the solicitor for Railcorp was not pleased. He wrote back objecting to Dr Harvey-Sutton being appointed as the Approved Medical Specialist. As he had now received Mrs Haroun's statement he averted to the seriousness of the complaints and requested that Mrs Haroun be obliged to file a sworn affidavit. 42On 7 November 2011, the delegate agreed that the allegations were serious and if substantiated they would constitute a breach of the Commission Code. The delegate then stated: "... The only way in which to determine whether the complaints can be substantiated is to conduct an investigation, including seeking a response from Dr Schutz to the specific allegations raised. I will commence an investigation shortly. In order to allow the dispute to proceed and not be delayed by the investigation, I have determined that an examination should be conducted by Dr Harvey-Sutton, who has also previously examined the Applicant." 43On 9 November 2011, an amended referral notice was sent to the parties appointing Dr Harvey-Sutton as the Approved Medical Specialist. 44The issue to be decided is whether, in making the determination on 7 November 2011 to appoint Dr Harvey-Sutton, the Registrar was functus officio. Was there a reconsideration - when did it occur? 45Railcorp submitted that the Registrar had exercised the power given to her under s 321(2) of the Workplace Injury Management and Workers Compensation Act by its decision of 29 September 2011 and that the Registrar was functus officio at the time of making the decision of 7 November 2011. Railcorp further submitted that in the situation where there has been a referral by the Registrar to attend an Approved Medical Specialist and the worker refused to go, the subsequent act of the Registrar to give a new referral to a different Approved Medical Specialist is contrary to both the Workplace Injury Management and Workers Compensation Act and good public policy. Further, Railcorp says that the reason given by the Registrar that the decision of 7 November 2011 was justifiable (ie that "the current matter was not one appropriate for referral back to Dr Schutz") is completely untenable, particularly in the light of its previous decision. 46Mrs Haroun submitted that what constitutes an unreasonable refusal to submit to an Approved Medical Specialist's medical examination would depend on the circumstances of the case. What may have been objectively reasonable from Railcorp's point of view may not have been fair from Mrs Haroun's point of view. The Act does not mandate strict adherence to the Registrar's practice. According to senior counsel for Mrs Haroun, for the Registrar to have slavishly insisted on its application in this case, would have improperly fettered her statutory discretions. 47According to Mrs Haroun, the Registrar has a wide discretion to reconsider previous decisions, irrespective of whether they had been affirmed. The power of reconsideration has to be exercised fairly and one of the factors to be weighed, in deciding whether to exercise the discretion in favour of Mrs Haroun, was the public interest that litigation should not proceed indefinitely. The Commission also has a duty to do justice between the parties according to the substantial merits of the case. Mrs Haroun submitted that the Registrar had ample power to make the 7 November 2011 decision. The Act expressly provided for reconsideration of the Registrar's 29 September 2011 decision. 48It is well known that in common law, a power is spent once it has been exercised. A decision-maker is functus officio when he or she has performed a statutory duty or exercised a statutory power that is not capable of being exercised on more than one occasion. As a matter of statutory construction, the source of the Registrar's power to refer this medical dispute for assessment under Pt 7 of the Workplace Injury Management and Workers Compensation Act was s 321(1), not s 321(2). This is because the parties had never previously agreed on Dr Schutz as the Approved Medical Specialist who was to assess this medical dispute. 49In Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597, a case concerning an administrative tribunal's capacity to correct its own error when, in consequence of that error, it failed to discharge its statutory function, Gleeson CJ (Gaudron, McHugh, Gummow, Hayne and Callinan JJ agreeing) said at [8]: "...circumstances can arise where a rigid approach to the principle of functus officio is inconsistent with good administration and fairness. The question is whether the statute pursuant to which the decision-maker was acting manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen." 50In the present case, the Act provides two separate sources of the Registrar's power to reconsider the Registrar's 29 September 2011 decision. The first, in more general terms, is s 350(3) of the Act. The expression, "the Commission" in s 350 include a Registrar: see s 368(1)(c) of the Act. The second, and in more specific terms, is s 378(1). 51Section 350 of the Workplace Injury Management and Workers Compensation Act reads: "350 Decisions of Commission (1) Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review. (2) A decision of or proceeding before the Commission is not: (a) to be vitiated because of any informality or want of form, or (b) liable to be challenged, appealed against, reviewed, quashed or called into question by any court. (3) The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission." And s 368(1)(c) reads: "368 Members of Commission (1) The Commission consists of the following members: ... (c) a Registrar ..." 52Section 378 of the Workplace Injury Management and Workers Compensation Act deals with redetermination. It relevantly reads: "378 Reconsideration of decisions of Registrar or Appeal Panel (1) The Registrar or an Appeal Panel may reconsider any matter that has been dealt with by the Registrar or an Appeal Panel, respectively, and rescind, alter or amend any decision previously made or given. (2) Without limiting subsection (1), if the Registrar is satisfied that there is an obvious error in the text of a decision, the Registrar may alter the text of the decision to correct the error. ... (4) The reconsideration of a matter that is in response to an application for reconsideration must be completed within 2 months after the application is received. (5) This section does not affect any other power under this Act or the 1987 Act to review or amend a decision." 53The decision (or decisions), the subject of the redetermination, was not one where there is obvious error in the text of the decision, the situation referred to in s 378(2). By the wording of ss 350(3) and 378(1), the Registrar "... may reconsider any matter that has been dealt with ... and rescind, alter or amend any decision previously made or given". It does not seem to confine the number of reconsiderations to one. The power for reconsideration can be exercised in accordance with s 378(1). If there has been a reconsideration under s 378(1), it was made within the time prescribed in s 378(4). 54In Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141; (2006) 5 DDCR 482, Acting Deputy President Bill Roche considered the nature of a reconsideration at [38] - [55]. The Acting Deputy President referred to the predecessor of s 350(3), namely s 17(4) of the Compensation Court Act 1984 and s 36 of the Workers Compensation Act 1926. There is no difference in the wording of those sections and s 350(3) of the Workplace Injury Management and Workers Compensation Act. 55Acting Deputy President Roche in Samuel v Sebel Furniture Limited considered earlier decisions under the previous sections and at [55] applied the words of Mahoney J in Switzerland Insurance Workers' Compensation (NSW) Ltd v Burley (NSWCA, 5 December 1996, unreported) at [11]: "Procedure in the Compensation Court is, in general, flexible and free from basic rigidities. This is as it should be: the Court is a specialist Court whose function is to deal with a large number of claims as expeditiously as may be. Its decisions are, in my opinion, to be given according to the law but with a regard to justice and merits appropriate to the nature of the social remedy which the legislation provides. Subject to observance of the specific statutory requirements, it should, in my opinion, exercise its jurisdiction in a beneficial manner and without undue emphasis upon technicalities." 56It is my view that the discretion of the Court, when it conducts a reconsideration, is wide ranging. Overall, the task of the Court is to balance the policy requirement of finality of litigation with the obligation to rectify any clear cut injustice. One of the circumstances where a reconsideration can take place is where there is fresh evidence (as opposed to more evidence). 57Generally speaking, so far as the appointment of an Approved Medical Specialist is concerned, an applicant could not unreasonably refuse to submit to a medical examination by an Approved Medical Specialist to whom the Registrar, in the exercise of her statutory powers, had properly referred this medical dispute for assessment. Normally, the Registrar's practice (although not appearing in any written guidelines available to the parties), to refer such a dispute back to a previously appointed Approved Medical Specialist who had considered the matter, may be a reasonable one. But the facts here are markedly different from the usual situation. There were a number of Approved Medical Specialists who fulfilled this criteria. While Mrs Haroun objected to Dr Schutz being appointed as the Approved Medical Specialist, she was not given the opportunity to explain why she held that view prior to him being appointed. 58On 29 September 2011, the Registrar made a decision to appoint Dr Schutz as the Approved Medical Specialist. At the time this decision was made Mrs Haroun's solicitors had only been requested to lodge an objection to the Approved Medical Specialist within seven days. The solicitors lodged an objection that same day. It was not a certainty that Dr Schutz would be appointed the Approved Medical Specialist. Meanwhile, Railcorp's solicitor requested the Registrar to require Mrs Haroun to provide reasons for her objection. No such reasons were sought from Mrs Haroun by the delegate before he made his decision to appoint Dr Schutz. These reasons (as sought by Railcorp) were forthcoming the next day but by then it was too late. The decision had already been made. Mrs Haroun has not challenged this decision of the Registrar. It may be that, in these circumstances, she was denied procedural fairness but I say no more about it. 59On 30 September 2011, in response to the initial request for a reconsideration, the delegate confirmed the decision to appoint Dr Schutz as the Approved Medical Specialist. At this time, the delegate was aware of Mrs Haroun's serious allegations concerning the conduct of Dr Schutz. He was aware of Railcorp's attitude. The delegate did not specifically refer to the exercise of specific power under either ss 350 or 378(1). Nor did he use the word "reconsideration" (my emphasis added). He explained that it was not open to the Registrar to simply change an Approved Medical Specialist on the basis of an application by one party, in the absence of an appropriate legal basis to do so; and on the information provided, there was no legal basis upon which the decision to appoint Dr Schutz as the Approved Medical Specialist should be altered. However, he had been asked to undertake a reconsideration. 60On the information provided there was an appropriate legal basis to do so. One option open to him was to alter his decision and change the Approved Medical Specialist. The power to be exercised was that under either s 378(1) or s 350(3). 61In Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190; (2010) 78 NSWLR 393, McDougall J referred to Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at [158]: "The majority pointed out (at [71]) that '[i]t is neither necessary, nor possible, to attempt to mark the metes and bounds of jurisdictional error'. However, by reference to the decision in Craig v South Australia (1995) 184 CLR 163 at 177-178, the majority identified three categories of jurisdictional error (at [72]): (1) The mistaken denial or assertion of jurisdiction, or (in a case where jurisdiction does exist), misapprehension or disregard of the nature of or limits on functions and powers; (2) Entertaining a matter or making a decision of a kind that lies, wholly or partly, outside the limits on functions and powers, as identified from the relevant statutory context; (3) Proceeding in the absence of a jurisdictional fact; disregarding something that the relevant statute requires to be considered as a condition of jurisdiction, or considering something required to be ignored; and misconstruction of the statute leading to misconception of functions. (Of this last example, it was said in Craig (at 178) that 'the line between jurisdictional error and mere error in the exercise or jurisdiction may be particularly difficult to discern.')." 62The actions of the Registrar on 30 September 2011, in failing to reconsider the appointment of an Approved Medical Specialist falls into category (1) in that the Registrar was mistaken in his denial of his power to reconsider an earlier decision. The Registrar, by her delegate, is obliged to exercise her power in accordance with her statutory powers. She failed to do so and this decision not to reconsider is invalid. 63As was said by the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj at [153]: "Once it is recognised that a court could set it aside for jurisdictional error, the decision can be seen to have no relevant legal consequences." 64Notwithstanding the jurisdictional error that occurred on the 30 September 2011, the most recent decision to appoint Dr Harvey-Sutton made on 7 November 2011 remains a valid exercise of reconsideration by the Registrar pursuant to Act and should stand. (2) Whether the matter should have been referred to the Medical Appeal Panel 65On 3 January 2012, Dr Harvey-Sutton issued a MAC which assessed Mrs Haroun's WPI as follows: the right upper extremity at 4% being a total WPI percentage of 4%; the right lower extremity at 3.6% and the left lower extremity at 7.2% being a total percentage WPI of 11%. 66Railcorp submitted that the Registrar should have found that at least one of the grounds under s 327(3) the Act had been made out, namely either s 327(3)(c) the assessment was made on the basis of incorrect criteria in that the Commission failed to take into account Dr Schutz's assessment; or s 327(3)(d) that is was a demonstrable error not to take those assessments into account as a matter of law. 67It is common ground that a recent change to the scheme for lump sum compensation for permanent impairment in the Workplace Injury Management and Workers Compensation Act permits only one claim for such compensation to be made. However, the newly inserted s 322A does not apply to these proceedings. The Registrar's reasons for determination dated 9 March 2012 68The Registrar set out the correct test to be applied pursuant to s 327. In her reasons for determination, the Registrar at [8] to [11] stated: "8 An AMS, unlike an arbitrator, is not a member of the Commission, and the issuing of a MAC is not a proceedings before the Commission (Jopa Pty Ltd t/as Tricia's Clip-n-Snip v Edenden [2004] NSWWCCPD 50 at [26] and, amongst many decisions, Ponticello (as executrix of the estate of the late Giorgio Gino Ponticello) v De Martin & Gasparini Pty Ltd and anor [2010] NSWWCCPD 46 at [42] - [44], [47] and [53] and Fleming v New South Wales Police Force [2011] NSWWCCPD 33 at [95]). The MAC is conclusively presumed to be correct, but it is not an order of the Commission and lacks 'finality' to ground estoppels (Superior Formwork Pty Ltd v Livaja [2009] NSWWCCPD 158 at [95], [98], [99] & [107]). 9 A determination of the Commission has the requisite 'finality' to support cause of action and issue estoppels between the parties and their privies. However, whilst the determination of the Commission creates an estoppel in respect of the degree of permanent impairment or permanent loss of use as at the date of that determination, the relevant circumstance in this case is an assessment of the degree of permanent impairment at a time later than the date of that determination of the Commission. 10 For the appropriate way to assess a claim for a 'further' permanent impairment at a later time for injury received on or after 1 January 2002 or permanent loss of use for an injury received prior to 1 January 2002, regard must be had to the decision in Rail Services Australia v Dimovski & Anor (2004) 1 DDCR 648, especially at 652-653; and also Rinker Group Limited v Mackell [2008] NSWWCCPD 100 at [122] - [125], Prist v Department of Ageing, Disability and Home Care (No 2) [2009] NSWWCCPD 13 at [55] - [60] and Abou-Haidar v Consolidated Wire Pty Ltd [2010] NSWWCCPD 128 at [65] - [66], The latter as an adjunct to a discussion of the nature of a further claim for lump sum compensation and the (absence of) relevance of proving "deterioration" for there to arise a need to refer to an AMS. In short, the authorities establish that there is no issue estoppel running from a determination of the Commission as at a particular date to an assessment at a later time in circumstances capable of change. 11 There is no issue estoppel in circumstances capable of change, and the degree of permanent impairment or loss of use that results from an injury is certainly a circumstance capable of change. The role of the AMS at a later time is to give an opinion as to the degree of permanent impairment as a result of the injury as the worker now presents, without a legal constraint from a prior award that would require the AMS to ground her assessment on first establishing improvement or deterioration from what has been determined by the Commission at an earlier time. A higher later figure may lead one to say that there has been a deterioration since a certain date, or a lower figure an improvement. Nonetheless, this shorthand way of putting it does not describe the role of the AMS in law. Any presumption of continuance falls away because the later certificate of the AMS is conclusively presumed to be correct in that regard. Adjustments for past payments in respect of an injury, when there is further permanent impairment or loss of use is a matter for the parties to determine, or the Commission if disputed." 69Railcorp submitted that the refusal of the Registrar to allow the appeal to proceed to a Medical Appeal Panel on the basis that the Approved Medical Specialist failed to make reference to the previous determination of the Workers Compensation Commission erred in law. This was contended on three bases; firstly, the Registrar failed to heed the decision of the Workers Compensation Commission in Superior Formwork Pty Ltd v Livaja [2009] NSWWCCPD 158 at [95] which deals with the situation of a determination by the Workers Compensation Commission as opposed to a MAC finding; secondly, the Registrar erroneously relied upon the decision of the Workers Compensation Commission in Abou-Haidar v Consolidated Wire Pty Ltd [2010] NSWWCCPD 128, a case that was inconsistent with the decision in Superior Formwork Pty Ltd v Livaja; and thirdly, the decision of the Workers Compensation Commission in Abou-Haidar v Consolidated Wire Pty Ltd is wrong in law and should not have been followed by the Registrar. 70Railcorp contended that, once a claim for lump sum compensation has been determined in a particular claim, there cannot be any subsequent lump sum claims or referrals to an Approved Medical Specialist unless there is evidence of a change or deterioration in the worker's condition. 71Mrs Haroun referred to ss 350(1) and (2) of the Act and submitted that once the Commission makes a decision on a dispute and a certificate of determination has been issued under s 294, except as otherwise provided in the Act, it is 'final and binding on the parties and is not subject to appeal or review' and is not open to challenge. 72Mrs Haroun has a claim for further or additional lump sum compensation, which she supported with medical reports assessing a WPI assessment that is higher than in a previous award or order. Such a claim, she submitted, where there is no dispute as to injury, is a medical dispute within s 319 of the Act. A worker does not have to establish a prima facie case of a deterioration before such a claim can be referred to an Approved Medical Specialist for assessment. 73Mrs Haroun accepts that if the Commission had determined that the effect of an injury had ceased, then there would be no medical dispute to be referred to an Approved Medical Specialist. In those circumstances, for the purposes of a lump sum compensation claim, the worker would be estopped from arguing to the contrary. Senior counsel for Mrs Haroun submitted, it is a well established principle that there is no issue estoppel in situations capable of change. A later claim for lump sum compensation is one example of such a change. According to Mrs Haroun, the relevant authorities reject Railcorp's contention that, once a claim for lump sum compensation has been determined, there cannot be further lump sum claims made or referred to an Approved Medical Specialist, unless there is evidence of a change or deterioration in the worker's condition. 74Mrs Haroun's position is that the law as expounded in Abou-Hadair v Consolidated Wire Pty Ltd is correctly stated, and is on point here and that the reasoning in Abou-Hadair v Consolidated Wire Pty Ltd is not to the contrary of, or inconsistent with, that in Superior Formwork Pty Ltd v Livaja. In any event, counsel for Mrs Haroun says that Superior Formwork Pty Ltd v Livaja is readily distinguishable on the facts of the present case. This is because the Commission has never determined that the effect of Mrs Haroun's injury had ceased. 75It is necessary to refer to both Abou-Hadair v Consolidated Wire Pty Ltd and Superior Formwork Pty Ltd v Livaja. 76In Abou-Haidar v Consolidated Wire Pty Limited at [55]-[58], [60] and [65] - [66] the Presidential Member stated: "55 I do not accept Mr Flett's submission that the position is different in a claim for additional lump sum compensation compared to an initial claim for such compensation. Nothing in the legislation provides any direct or implied support for that submission. It is not necessary for the Commission to determine, as a threshold issue, whether the worker has demonstrated that his or her condition has deteriorated before the matter is referred to an AMS for a further assessment. A worker must make a claim under s 282 and support that claim with a whole person impairment assessment in the proper form from a WorkCover trained assessor. If the assessment is the same as in a previous award or order of the Commission, there will be no basis for referral to an AMS. If the assessment is higher than in a previous award or order, then, assuming that there are no liability issues in dispute, the Registrar will refer the matter to an AMS for further assessment. 56 The orders made on 4 January 2007 awarded compensation for $7,500 in respect of six per cent whole person impairment. The Commission made that order based on Dr O'Neill's MAC issued on 6 December 2006 that assessed six per cent whole person impairment as a result of injury to the worker's neck and nil whole person impairment as a result of the injury to the thoracic spine. As neither party appealed the MAC and the Commission made orders based on it on 4 January 2007, it follows that the finding of nil per cent impairment for the thoracic spine is conclusively presumed to be correct and formed the basis for the orders made on 4 January 2007. 57 Section 105 does not assist the employer. It gives the Commission jurisdiction, "subject to" the 1998 Act, to 'examine, hear and determine all matters arising under' the 1998 Act and the 1987 Act. The Commission has jurisdiction to determine liability issues. However, once those issues are determined, the Commission has no jurisdiction to determine medical disputes that come within the terms of s 319. A claim for further or additional lump sum compensation as a result of an alleged increased impairment since a previous assessment or award, where there is no dispute as to injury, is such a medical dispute. A worker does not have to establish a prima facie case of a deterioration before such a claim can be referred to an AMS for assessment and, to the extent that suggests the contrary, it is not consistent with the legislation. 58 I do not accept that this result will mean that there will be no limit to the number of applications for additional lump sum compensation a worker can bring. The right to have a claim referred to an AMS is restricted to claims that comply with the claims procedure in the legislation and the WorkCover Guidelines. Those claims will have to be supported by assessments provided by WorkCover trained assessors. Workers who bring claims that are frivolous or vexatious, fraudulent or without proper justification will be liable to an adverse costs order (s 341). The Commission will determine costs applications on a case-by-case basis. However, if, in a subsequent claim, a worker relies on essentially the same evidence used to support the initial claim, and if that evidence does not suggest a change in the level of whole person impairment since a previous assessment, and if the AMS reaches the same conclusion he or she reached in the initial MAC, the employer may have an argument that the claim was frivolous or vexatious, or brought without proper justification. ... 60 The insurer has not disputed whether Mr Abou-Haidar made a proper claim for lump sum compensation on 5 February 2010. It raised no liability issue, but merely disputed whether there had been a deterioration. The question of deterioration is not strictly relevant and certainly not determinative of a later claim for whole person impairment. An assessment of whole person impairment is not based on a worker's subjective complaints of deterioration, but depends on an objective assessment based on the American Medical Association's Guides to the Evaluation of Permanent Impairment (5th edn) and the WorkCover Guidelines. ... 65 I do not believe that allowing the matter to be referred to an AMS will be contrary to the Commission's objectives of providing a fair and cost effective system for the resolution of disputes under the Workers Compensation Acts (s 367). Once liability is determined, or, if there are no liability issues, the Commission must refer properly made claims for permanent impairment compensation to an AMS for assessment. If the claim has been made without proper justification and the AMS assesses a nil impairment for an injury that had previously been assessed at nil, the employer may have grounds, depending on an assessment of all the evidence, to make an application for costs under s 341(4). Further, unmeritorious applications that merely seek to cavil with a conclusive and binding MAC that has not been appealed under s 327 (or challenged in the Supreme Court) may also be liable to be dismissed as 'frivolous or vexatious or otherwise misconceived or lacking in substance' (s 354(7A)). The employer made no application under s 354(7A) in the present case. 66 The last point to note (though it was not argued by Consolidated, but may be relevant to future claims) is that there is no estoppel in a changing situation (The Doctrine of Res Judicata by Spencer Bower, Turner and Handley, 3rd edn, 1996, at page 102; O'Donel v Commissioner for Road Transport & Tramways [1938] HCA 15; 59 CLR 744; Dimovski; Hamersley Iron Pty Ltd v The National Competition Council [2008] FCA 598 at [114] to [116]; Prisk v Department of Ageing, Disability and Home Care (No 2) [2009] NSWWCCPD 13 at [55]). A claim for additional lump sum compensation is such a situation." 77Railcorp asserted that the Registrar failed to heed the decision in Superior Formwork Pty Ltd v Livaja. In that case the Presidential Member stated, at [95], [98], [99] and [107]: "95 A MAC issued in earlier proceedings does not bind the parties in later proceedings unless the Commission has determined the issues in dispute in the earlier proceeding. Nor does it create an estoppel that is binding in later proceedings between the same parties. Had the first proceedings concluded with a determination by the Commission based on the terms of the Appeal Panel MAC, then, in the absence of a successful reconsideration application under section 350(3) of the 1998 Act, Mr Livaja would have had little prospect of avoiding the effect of that determination. However, in the absence of a determination in the first proceedings there is no reason in logic or in law why the Appeal Panel MAC is conclusively presumed to be correct in subsequent proceedings with which it was not concerned. ... 98 The fallacy of the employer's argument is well illustrated if the roles are reversed. Say a worker obtained a favourable MAC in the first proceedings, but, because he or she wished to undergo further investigations in the hope of obtaining a higher assessment, decided to discontinue those proceedings before the Commission determined the dispute by issuing a Certificate of Determination. If, as a result of the investigations, the worker's whole person impairment were then assessed to be substantially lower, would the worker, in subsequent proceedings, be entitled to rely on the MAC issued in the discontinued proceedings? The answer is clearly 'no'. Because the worker discontinued the first proceedings before any binding determination by the Commission, the medical dispute would remain on foot and be referred to a second AMS for assessment in the second proceedings, having regard to the evidence tendered at that time. The MAC issued by the second AMS would (subject to any appeal under section 327) be conclusively presumed to be correct in the proceedings with which it is concerned, namely the proceedings in which it is issued. 99 If the Commission has determined the issues in dispute, an estoppel may arise that will bind the parties in the later proceedings. No estoppel arises in the present matter because Mr Livaja discontinued the first proceedings. However, the employer's argument seeks to elevate the Appeal Panel MAC in the first proceedings to the level of an estoppel. If no Certificate of Determination is issued (because the worker has discontinued the proceedings), the MAC in the first proceedings may be tendered as evidence in subsequent proceedings (as it was in the current proceedings), but is not conclusively presumed to be correct in those proceedings because they are not the proceedings 'with which the certificate is concerned'. ... 107 ... A MAC is not conclusively presumed to be correct in relation to the particular matter in dispute in isolation of the proceedings with which it is concerned. It is conclusively presumed to be correct as to certain issues, but only in relation to any proceedings with which the certificate is concerned, whether those proceedings are in the Commission or in a court. The question is with which proceedings is the certificate 'concerned'. Not, with which dispute is the certificate concerned? In the present case, that question is capable of only one answer. The Appeal Panel MAC was issued in and 'concerned' with the first proceedings and it is therefore not conclusively presumed to be correct in the current proceedings." 78The MAC issued by Dr Schutz was concerned with Mrs Haroun's first application for lump sum compensation. This was confirmed by the Appeal Panel on 22 May 2007. However, the Appeal Panel MAC is not conclusively presumed to be correct in other proceedings. Dr Harvey-Sutton issued Mrs Haroun with a MAC which has assessed Mrs Haroun's WPI to be greater than the assessment of Dr Schutz in other proceedings. 79I do not agree with Railcorp's contention that the decision in Abou-Haidar v Consolidated Wire Pty Ltd is inconsistent with the decision in Superior Formwork Pty Ltd v Livaja. I accept that if Railcorp's contention is correct then the Registrar would have fallen into error. In Superior Formwork Pty Ltd v Livaja, it was held that a MAC issued in earlier proceedings does not bind parties in later proceedings unless the Commission has determined the issues in dispute in the earlier proceedings. Mrs Haroun's first proceedings were determined by the Commission and a Certificate of Determination was issued on 29 June 2007. However, in Superior Formwork Pty Ltd v Livaja at [104]-[105], it was said: "104 ... a worker's medical condition is capable of change. It is now more than two years since the Appeal Panel MAC. As a matter of basic fairness there is no reason why a MAC that is two years old should now bind a worker, especially in circumstances where he has issued fresh proceedings suggesting, based on different evidence, his impairment is different to that assessed two years earlier. 105 Last, the relief sought in the current proceedings will merely result in the assessment of the whole person impairment resulting from the cervical spine injury being referred to an AMS for assessment. The assessment method requires the application of criteria in the American Medical Association, fifth edition, Guides to the Evaluation of Permanent Impairment, and the WorkCover Guide to Evaluation of Permanent Impairment. The method of assessment of whole person impairment is an objective one. The second AMS will assess the worker using the same objective criteria used by the Appeal Panel in the first proceedings. There is every possibility that the result will be the same or similar to that reached by the Appeal Panel. Thus, there is no injustice or unfairness to the employer. Rather than making a 'mockery of the legislative scheme', as the employer argues, it provides a fair and just application of the medical assessment process. An independent medical expert will assess the current claim in accordance with objective criteria. The result urged by the employer, however, would potentially result in an injustice to Mr Livaja because he would be bound by an assessment issued over two years ago in circumstances where the current medical evidence suggests that the earlier assessment was erroneous. " 80In Mrs Haroun's case, the MAC issued by Dr Schutz is now more than five years old. She was entitled under the law, as it existed at the time she made the application, to commence new proceedings for additional lump sum compensation. That claim was supported by a WPI assessment in the proper form that had a higher assessment than in the previous award or order of the Commission. 81In Prisk v Department of Ageing, Disability and Home Care (No 2) [2009] NSWWCCPD 13 at [55]-[60]: "55 There is no issue estoppel in a changing situation (Spencer Bower, at p102 and Hamersley Iron Pty Ltd v The National Competition Council [2008] FCA 598 at [114] to [116]), and a later claim for hearing loss compensation as a result of a further injury is one example of such a situation. This point is succinctly illustrated in Spencer Bower (at [185]): 'An agreement to pay compensation registered under the Workmen's Compensation Acts estopped the employer from disputing liability for the accident; but not from contending that the worker's death did not result from it.' 56 The authorities cited in Spencer Bower are Cleverley v Gas Light and Coke Co (1907) 24 TLR 93 and O'Donel v Commissioner for Road Transport [1938] HCA 15; (1938) 59 CLR 744 ('O'Donel'). The authority of O'Donel is of particular significance and was considered and applied by Handley JA in Dimovski. 57 In Dimovski, the parties settled a claim by consent for 25% loss of use of a leg and an award was entered in those terms. In later proceedings the worker sought an additional payment under section 66 of the 1987 Act as a result of an alleged increase in the loss of use of the same leg due to further injuries. The trial judge held that the worker had sustained further injuries that had a permanent effect on the leg but she did not increase the award of 25%. 58 On appeal it was argued that the earlier consent award created estoppels, which meant that if the later injuries had a permanent effect then there had to be an increase in the percentage loss of use awarded. Justice Handley set out the principles at [9] to [12]: '9 Mr King submitted that the Judge erred in law in failing to give effect to the estoppel created by the consent award by finding that although the worker had suffered further injuries to his left leg his current loss of use was still only 25%. A consent judgment can create res judicata estoppels: Spencer Bower, Turner & Handley "Res Judicata" 1996 pp 21-2. The estoppels flowing from the consent award bound the second respondent as a party and the appellant as a privy in interest, as the second respondent's statutory successor: Spencer Bower & Ors (above) pp 119-22. 10 The argument based on issue estoppel involved two propositions. The first was that the consent award conclusively determined that as at 16 October 1996 the worker had a permanent impairment of his left leg at or above the knee of 25% which was the result of an injury or injuries sustained in the employment of the second respondent. This is correct. The second was that he suffered two further injuries to his left leg in the employment of the appellant, one from the nature and conditions of his work, and the other the frank injury on 25 May 1998. This was also correct. 11 If these further injuries caused other than temporary aggravations of the worker's condition they must have increased the impairment in his left leg. The Judge did not find that they only caused temporary aggravations, but nevertheless found no increased impairment. Accordingly it was submitted that she had disregarded the estoppel. Mr King relied strongly on her statement that the consent award was 'possibly not reflective of an accurate assessment'. 12 These submissions must be rejected because they are contrary to the principles established in O'Donel v Commissioner for Road Transport [1938] HCA 15; (1938) 59 CLR 744. A decision that a worker's total blindness between 14 September 1934 and 15 February 1935 arose from an injury in the course of his employment was held not to issue estop the employer from contending that his blindness after 15 February 1935 arose from other causes. Evatt J said at 763: "The argument involves and is based upon the fallacy that where an issue between A and B related to a state of things which is capable of subsequent alteration, the conclusive determination in A's favour of that state of things as at one date plus conclusive proof that up to a later day there has been no alteration of such state of things establishes in A's favour as against B an estoppel as to the state of things existing at the later day ... this method, thought logically sound, is not permitted by law ... The unsuccessful party is bound by the authoritative determination of every fundamental issue but when a distinct and separate issue arises subsequently, he is not bound to submit to the second issue being established by the combination of a former issue with additional evidence, no matter how strong such evidence may be".' 59 Dealing specifically with the consent awards, his Honour said (at [14]): 'The consent award involved admissions by the parties and these, coupled with the presumption of continuance, were of some weight. However there was much other evidence, lay and expert, relating to the worker's impairment at the later date and the weight to be given to the admissions and the presumption of continuance was a question of fact for the Judge.' (emphasis added) 60 In the same case Hodgson JA said (at [57]): 'The inconsistency point was supported by submissions concerning issue estoppel. However, although an issue estoppel binds the parties as to the issues actually determined, they are not bound in relation to any different issue, not even where the combination of the original issue and extremely strong evidence would support a finding on the second issue: see O'Donel v. The Commissioner for Road Transport and Tramways (NSW) (1938) 59 CLR 747 at 763.'" 82There is no issue estoppel created by the first determination that operates to restrict the determination of any subsequent medical re-assessment. The present case is one where the initial determination may be reassessed at a later date if the injury has the potential to cause a subsequent variation of the degree of whole person impairment. Accordingly, the issue estoppel created by the first determination is limited strictly to the degree of impairment at the date of that determination, and does not impinge on the re-assessment of subsequent impairment. 83Prisk v Department of Ageing, Disability and Home Care (No 2) and Abou-Haidar v Consolidated Wire Pty Ltd establish there is no issue estoppel running from a determination of the Commission as at a particular date to an assessment at a later time in circumstances capable of change. The Registrar stated at [11] that a degree of permanent impairment or loss of use that results from injury is a circumstance capable of change. The role of an Approved Medical Specialist at a later time is to give an opinion as to the degree of permanent impairment as a result of the work injury now present. The Approved Medical Specialist is not legally constrained by the prior award and is not required to ground their assessment, whether of improvement, deterioration or no discernible change, upon the previous determination of the commission. Any presumption of continuance falls away because the later certificate of the Approved Medical Specialist is conclusively presumed to be correct in that regard. 84Dr Harvey-Sutton found a greater degree of impairment than Dr Schutz. The plaintiff asserted that Dr Harvey-Sutton failed to refer to Dr Schutz's assessment in her MAC. It was submitted that this failure was a demonstrable error or established that Dr Harvey-Sutton had applied incorrect criteria. The Registrar stated correctly at [11]-[12] that the role of an Approved Medical Specialist is to give an opinion as to the degree of impairment at the time of the examination without the legal constraint from any prior award. The Approved Medical Specialist is entitled to apply their expertise on the day of the examination. 85The result is that the application by Railcorp for judicial review fails. The redetermination dated 7 November 2011 and the decision of the Medical Appeal Panel dated 9 March 2012 are correct and should not be set aside. 86Costs are discretionary. Costs normally follow the event. The plaintiff's claim for judicial review fails. Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the second defendant's costs as agreed or assessed. The Court orders that: (1) The plaintiff's claim for judicial review fails. (2) The summons filed 13 April 2012 is dismissed. (3) The plaintiff is to pay the second defendant's costs as agreed or assessed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 March 2013